[00:00:00] Speaker 02: The next case for argument is 23-2226, Berry v. DeCruz Synthesis. [00:00:09] Speaker 02: We're ready whenever you are, Mr. Holloway. [00:00:11] Speaker 02: May it please the court. [00:00:14] Speaker 01: The two errors below of granting JMAW and excluding the Neil survey should be reversed. [00:00:21] Speaker 01: I'd like to begin with the exclusion of Dr. Yassir's testimony and application of the court's claim construction, and then we'll turn to the others. [00:00:29] Speaker 01: Dr. Yassir was improperly excluded over his application of the claim term handle means. [00:00:35] Speaker 01: At appendix 1237 through 39, Dr. Yassir repeatedly used the verbatim court's claim construction and slight variations to it in applying the construction to the accused products. [00:00:49] Speaker 01: For example, the question was, do the levers have parts especially designed to be grasped by the hand? [00:00:54] Speaker 01: Another question. [00:00:55] Speaker 01: Does that mean there is no part of the deal? [00:00:57] Speaker 04: I don't know that it's disputed that on direct, at least occasionally, perhaps always on direct, he literally said he was applying the court's claim construction. [00:01:07] Speaker 04: But then we get to cross, and it seems like he said a bunch of other things that do look like their intention with the court's claim construction. [00:01:16] Speaker 04: If that's how we see the record, what should we do? [00:01:19] Speaker 01: Respectfully, Your Honor, I don't think their intention with the court's claim construction [00:01:23] Speaker 01: Your honor is referencing the slide, for example. [00:01:26] Speaker 04: For example, when he says everything in figure one is a handle means. [00:01:32] Speaker 04: which could only be true if he's applying the court's construction, if everything in figure one is especially designed to be grasped by the hand, right? [00:01:41] Speaker 01: Exactly. [00:01:42] Speaker 04: So how is what he said? [00:01:44] Speaker 01: Because what your honor has exactly pointed out is the difference between what is the claim construction and is an expert using the verbatim claim construction, like in the antigenics case, and how is the expert applying the claim construction. [00:01:58] Speaker 01: In other words, what's the mental step between yes, the court's claim construction is a part designed especially to be grasped by the hand and explaining to the jury why or how that is. [00:02:10] Speaker 01: Two questions later from the question your honor is pointing to. [00:02:14] Speaker 01: Doctor, you're explaining that the need for surgical tools is for surgeons to do what patients need and the patients need them to be manipulated by hand. [00:02:23] Speaker 01: So they have to be especially designed to be grasped because that is how surgery is done at appendix 1256. [00:02:29] Speaker 01: The application is completely acceptable within this court's jurisprudence, like the MedVacCo and some other ones that we cite. [00:02:38] Speaker 01: The application is OK, even if it's not the verbatim words. [00:02:43] Speaker 04: What if the way I read the record is that in an effective cross-examination, [00:02:50] Speaker 04: Counsel got your expert to admit that in his head, he doesn't really believe the court's construction. [00:02:57] Speaker 04: He didn't really apply it when he went through the mental analysis. [00:03:02] Speaker 04: I don't think that's correct. [00:03:03] Speaker 04: But that's how I read the record. [00:03:06] Speaker 04: So on direct, he's really good about saying, I applied to court to claim destruction. [00:03:09] Speaker 04: He says the words. [00:03:11] Speaker 04: But then on cross, we learn, in his head, that's really not what he did or thought. [00:03:17] Speaker 04: What do we do with a record like that? [00:03:21] Speaker 04: Does that get played out in front of the jury? [00:03:23] Speaker 04: Or knowing that, should we have stricken this guy from testifying? [00:03:26] Speaker 01: There's a difference between, for example, in some of the cases that we cited where the construction is a line and a party pretrial advocates for a construction that that means a perfectly straight line. [00:03:40] Speaker 01: And the district court judge says pretrial, it does not have to be perfectly straight. [00:03:45] Speaker 01: Then you show up in front of the jury, and your application is, it must be perfectly straight. [00:03:51] Speaker 01: That's a violation of the claim construction. [00:03:53] Speaker 01: That should be excluded. [00:03:55] Speaker 01: The exact opposite happened here. [00:03:58] Speaker 01: The proffering party said that the construction should be a part designed especially to be grasped by the hand, acknowledged at markment [00:04:05] Speaker 01: that during the oral argument at 16,000 to 16,001, this is Depew, that the proposed definition of engrossing something by the hand could theoretically encompass every element of the accused's products. [00:04:19] Speaker 01: Depew's brief at Markman at 16429, Depew said that even the end of the handle, or even the end of the lever, is going to be part of Dr. Berry's construction. [00:04:29] Speaker 01: And we argued for that. [00:04:30] Speaker 01: And that was the construction that was given. [00:04:32] Speaker 01: And the district court judge told us [00:04:35] Speaker 01: After Markman, at summary judgment and again at Daubert, quote, my claim construction contemplates an embodiment of the plaintiff's invention in which the surgeon grasps the shaft or lever rather than a separate part strictly designed for handling. [00:04:52] Speaker 01: That's at 15642, citing to the Markman at 15163. [00:04:57] Speaker 01: So that's the landscape pretrial. [00:05:01] Speaker 01: Expert takes the sand and says, [00:05:03] Speaker 01: I know it doesn't have to be a separate part strictly designed for being grasped by the hand, because that's what the judge told us in the claim construction. [00:05:10] Speaker 01: How do I know that this thing in the Depew product has a part designed especially grasped by the hand? [00:05:16] Speaker 01: Because it's a surgical tool and those companies are building them to do that. [00:05:20] Speaker 01: That's the application of the why. [00:05:23] Speaker 01: Otherwise, all an expert is ever going to say when cross-examined at trial is, I used the court's claim construction, or just repeating the words. [00:05:32] Speaker 01: The one part of Your Honor's question I would like to go back to is it was effective cross. [00:05:36] Speaker 01: Cross-examination of application is not an exclusion issue. [00:05:40] Speaker 01: That is not a violation of claim construction. [00:05:42] Speaker 01: That's a job for the jury to decide. [00:05:44] Speaker 04: Did they move for construction as a matter of law on the grounds that they got your expert to testify in contradiction to the court's construction? [00:05:53] Speaker 04: Was that one of their grounds for directed verdict? [00:05:57] Speaker 01: No. [00:05:58] Speaker 01: Their grounds for directed verdict was that there was insubstantial evidence. [00:06:01] Speaker 01: The judge ruled he was excluding Yassir's construction as contrary. [00:06:06] Speaker 01: They made that motion as a Daubert motion pre-trial. [00:06:11] Speaker 01: They renewed it as a Daubert exclusion. [00:06:13] Speaker 01: The judge then used it as JMAW. [00:06:15] Speaker 01: Does that properly answer your question? [00:06:17] Speaker 03: Thank you. [00:06:17] Speaker 03: And was this, I think, with Yassir, the papers, or at least the court, invoked only 702, not 402 or 403. [00:06:24] Speaker 03: I think he invoked 403, Neil. [00:06:28] Speaker 03: Correct. [00:06:29] Speaker 01: On 403, there was a even if it could come in. [00:06:33] Speaker 03: And this is 702A not helpful because contrary to the governing legal standard, namely the claim. [00:06:38] Speaker 01: Correct. [00:06:39] Speaker 01: The violation of a court's claim construction order is a 702 problem. [00:06:43] Speaker 03: 702A. [00:06:44] Speaker 01: 702A problem. [00:06:45] Speaker 01: Correct. [00:06:48] Speaker 01: There was separate evidence that should have had this case survive J-Mall. [00:06:53] Speaker 01: Specifically, Depew gave the tools to the jury. [00:06:58] Speaker 01: and had argued to the jury anyone can figure out that this thing does not have a part designed to be specially grasped by the hand by making reference to coffee cups. [00:07:07] Speaker 01: Under the valve case, that would have been a loan. [00:07:10] Speaker 01: The jury can look at the part and figure out a relatively simple thing as where is someone supposed to grab this that they could have come to that conclusion. [00:07:18] Speaker 01: Moreover, they heard testimony [00:07:21] Speaker 01: that surgeons, Depew surgeons, had, for example, created constructs where you'd link three or more vertebrae on the left side, three or more vertebrae on the right side, and then connected them across with a connector and performed derotation. [00:07:33] Speaker 01: Depew's response to that, that's in appendix 1391 through 92. [00:07:37] Speaker 01: Depew's response to this is that Dr. Bett said rarely. [00:07:40] Speaker 01: But this is a direct infringement problem. [00:07:43] Speaker 01: The question is, had it ever done? [00:07:45] Speaker 01: Had it ever been done? [00:07:46] Speaker 01: We have that testimony. [00:07:48] Speaker 01: The argument in response to that was it only applies to two of the three patents. [00:07:52] Speaker 01: Again, that kind of makes the point. [00:07:53] Speaker 01: The district court judge here was trying to exclude evidence so that there was nothing that could go to the jury when, in fact, there was evidence that when you take it in the light most favorable to Mary. [00:08:03] Speaker 03: What you're now saying is, do I take it, is an argument that even if Yasser was properly excluded, Jamal was incorrect? [00:08:11] Speaker 03: Correct, Your Honor. [00:08:11] Speaker 02: And we briefed that in both the blue and the gray briefs. [00:08:14] Speaker 02: Can I get to that, I guess? [00:08:15] Speaker 02: I mean, like, well, the patents are different, similar but different. [00:08:19] Speaker 02: The 358 has two limitations, and you have to meet both, right? [00:08:24] Speaker 02: And the second one is applying manipulative force simultaneously. [00:08:29] Speaker 02: Correct. [00:08:30] Speaker 02: Where is that testimony? [00:08:33] Speaker 02: Where is the testimony sufficient to support that? [00:08:37] Speaker 02: Dr. Sier admitted, did he not, that he [00:08:43] Speaker 02: that he didn't. [00:08:46] Speaker 02: Does Yassir give you anything on that? [00:08:48] Speaker 01: Yes. [00:08:48] Speaker 01: Dr. Yassir explains, for example, when he's testifying about the [00:08:55] Speaker 01: surgical technique guides that the PU uses that are the instructions here at appendix 6358, 6214, 6150. [00:09:02] Speaker 01: These are the surgical technique guides. [00:09:05] Speaker 01: Dr. Yassir explains how for the one at 6358, when you build that tool that's showing the application of manipulative force, you would only build that tool if you were to push on both sides. [00:09:16] Speaker 02: I thought, I mean there's testimony, is there not, that he said that none of the product literature shows manipulative force applied simultaneously to two different handle means? [00:09:25] Speaker 01: That's in reference to the 6358 and two questions later he explains how the only reason you would build that tool is if you used both tools. [00:09:33] Speaker 01: For other ones where it actually is physically linked across the spine, for example at 6214 and 6150, [00:09:40] Speaker 01: The actual surgical technique goes, show moment arrows, the curved things showing that the thing is going to be turned. [00:09:47] Speaker 01: You don't build them and then not use them. [00:09:50] Speaker 04: But what if we were to affirm the striking of Dr. Yassir? [00:09:56] Speaker 04: Can you still argue that you have sufficient evidence for infringement of the 358 with the manipulative force? [00:10:03] Speaker 04: limitation without Dr. Yasser? [00:10:05] Speaker 01: Yes. [00:10:05] Speaker 01: What I said before, they had the tools, they'd seen the tools themselves, they can come to a conclusion given the court's instruction on what handle means means and the rest of the claim that they'll be told that it has a handle means. [00:10:17] Speaker 01: They've seen images at 6358, 6214, and 6150 of diffuse intention that the thing is going to be used to do derotation. [00:10:26] Speaker 02: So you're saying that even absent Yassir, that they could look at 6358 and conclude that this consists of applying manipulative force to said first handle and applying manipulative force to the second handle substantially simultaneously? [00:10:43] Speaker 01: But Yassir was only excluded in the court's Jamal order on the application of handle means, not the application of force. [00:10:51] Speaker 04: So you do need him on manipulative force, but you're saying no one ever struck him on that. [00:10:56] Speaker 01: I don't think he's absolutely necessary, but it's not the only evidence. [00:11:10] Speaker 01: construction of application of handling. [00:11:12] Speaker 02: Do you happen to have the appendix sites? [00:11:14] Speaker 02: Because as I said, there is one site where he said that none of the literature shows that they are applied simultaneously. [00:11:21] Speaker 01: So you're asking for Ysir's site that Manipulative Force is shown? [00:11:27] Speaker 01: Yes. [00:11:27] Speaker 01: One second. [00:11:31] Speaker 01: I will confirm that, but I believe it's 1258. [00:11:34] Speaker 01: But if I'm not right on that, I'll correct that in my rebuttal time. [00:11:38] Speaker 01: I'd like to switch to discussing Dr. Neal for a second if I can. [00:11:41] Speaker 01: Dr. Neal's testimony was improperly excluded because the court did not stay in its lane on the gatekeeping function. [00:11:48] Speaker 03: Can I just ask a question? [00:11:49] Speaker 03: So Neal's survey was being offered both for damages and for direct infringement? [00:11:58] Speaker 03: Is that right? [00:11:58] Speaker 01: It was offered for actually three purposes, Your Honor. [00:12:01] Speaker 01: Direct infringement. [00:12:02] Speaker 01: inducement. [00:12:03] Speaker 01: These are inducement cases. [00:12:04] Speaker 01: So we're being offered to prove up inducement issues, as well as assisting our damages expert in the quantification of infringing uses. [00:12:11] Speaker 03: So the idea I have, and just tell me if this is wrong, it may be one thing to exclude a survey that's being offered to show the quantity of infringement as just a really bad survey. [00:12:26] Speaker 03: But if what it's being offered to show in part [00:12:32] Speaker 03: is there was at least one infringing act. [00:12:37] Speaker 03: The threshold for saying, OK, it's enough to show that would seem to be much lower. [00:12:46] Speaker 03: What do you make of that point? [00:12:47] Speaker 01: I don't disagree with your point. [00:12:49] Speaker 01: I think that it gets to an interesting question on what we're testing here. [00:12:53] Speaker 01: We're testing the preponderance of the evidence that it's more likely than not that the survey was using sound scientific techniques. [00:13:00] Speaker 02: But before we leave this point, I understood his testimony to be for the purpose of quantifying infringement. [00:13:08] Speaker 01: Is that an incorrect statement? [00:13:11] Speaker 01: I would say it's incorrect, Your Honor. [00:13:13] Speaker 01: It had to be used for the purposes of tying, for example, the surgical technique guides and instruction that was being given by Depew to the surgeons. [00:13:22] Speaker 01: Most of the briefing at this court has all been about the first part of the survey, which is were infringing surgeries done and how many. [00:13:31] Speaker 01: The back half of the survey, which we don't talk about any of the briefs, had to do with tying those infringing uses. [00:13:37] Speaker 01: to things like surgeon education sponsored by Depew, the surgical technique guides, the presence of sales reps in the room during these procedures. [00:13:45] Speaker 01: So it covered everything from, to Judge Tronto's question, direct infringement through inducement, and then ultimately was used alongside with the damages expert to quantify. [00:13:56] Speaker 03: I guess just maybe to put the point in a slightly different way, have you made the argument that even if the methodological flaws were sufficiently great, that under 702, it was not an abusive discretion to exclude testimony about the quantity of direct infringement based on that survey, still [00:14:25] Speaker 03: They weren't. [00:14:26] Speaker 03: The flaws were not so great that it would justify excluding the testimony based on the survey to show I think there's at least one direct infringement, which would seem – I mean, you would need – and you get the point. [00:14:44] Speaker 03: I don't – have you made that argument? [00:14:46] Speaker 01: I get your point, and no, and here's why. [00:14:49] Speaker 01: The test for the exclusion under 702 [00:14:52] Speaker 01: is have we shown that there's a preponderance of the evidence that the methods used by the survey expert are sufficiently tied to a scientific method? [00:15:01] Speaker 01: That's the only question that's involved in the 702 analysis. [00:15:04] Speaker 03: Relevant to an issue in the case. [00:15:07] Speaker 01: Obviously. [00:15:07] Speaker 03: And there are two different issues, at least two. [00:15:10] Speaker 03: Correct. [00:15:11] Speaker 03: That there was direct infringement and how much there was. [00:15:15] Speaker 01: Yes. [00:15:16] Speaker 01: Was there directly induced infringement and how much was there? [00:15:18] Speaker 01: Are the questions relative to the issue? [00:15:20] Speaker 01: And isn't it possible that your method was reliable for one of those but not for the other? [00:15:25] Speaker 01: That's where I was going with my answer. [00:15:27] Speaker 01: That's a wait question. [00:15:29] Speaker 01: That's where do we give him credit for what he did and what the survey shows and where we don't. [00:15:35] Speaker 01: And that's where this issue becomes, this was not a Dalbert problem. [00:15:39] Speaker 01: It's not a 401-3 problem. [00:15:40] Speaker 01: There's nothing in the record that's just that this didn't answer the question of direct infringement, inducement, or damages. [00:15:46] Speaker 01: So we're done with 403. [00:15:48] Speaker 01: The Dalbert question under 702 is, did the survey use reliable techniques such that the expert could rely on the outcome? [00:15:56] Speaker 01: The answer to that is yes. [00:15:57] Speaker 01: Dr. Neal testified. [00:15:59] Speaker 01: at length from Appendix 1164 to 67 about his survey method of casting a wide net, screening them down, and comparing them to independent data. [00:16:10] Speaker 01: What I understand Judge Taranto to be asking is, well, what if I don't like the outcome of that in terms of showing that there were exactly 3,000 surgeries? [00:16:19] Speaker 01: That's for the jury to decide to credit that. [00:16:21] Speaker 01: What if I want to say it only credited one surgery? [00:16:24] Speaker 01: Once we've crossed that Dalbert threshold, your question has switched to how much weight should the jury be given the results. [00:16:31] Speaker 01: And we're not here to test the conclusions, and we're not here to test if it's right. [00:16:36] Speaker 01: The question is simply, did the record contain good grounds under Third Circuit law for him to have relied on it? [00:16:42] Speaker 01: There is no challenge in evidence, only argument, that there were certain things that Neal should have done differently. [00:16:50] Speaker 01: There is no evidence that they would have changed the result. [00:16:53] Speaker 01: There's not even evidence that what Dr. Neal did was wrong. [00:16:56] Speaker 04: You tell us in your brief at 12 that Neal has been a survey expert in more than 40 litigations and survived nine Dalbert motions. [00:17:05] Speaker 04: How many did he not survive? [00:17:07] Speaker 04: He has not ever lost. [00:17:08] Speaker 01: He's only been challenged nine times and never lost. [00:17:11] Speaker 01: Including one of them was this court's decision in Barry versus Medtronic where we use the same exact same methodology [00:17:18] Speaker 01: which mimics the methodology used in GlaxoSmithKline and Roche. [00:17:22] Speaker 01: I've gone way over my time. [00:17:23] Speaker 02: Yeah, but I have one more quick question. [00:17:24] Speaker 02: I hope you'll be brief, but I just... on cross-linking. [00:17:29] Speaker 02: What's your best evidence on cross-linking? [00:17:31] Speaker 02: Let's assume hypothetically we're getting rid of the cert. [00:17:34] Speaker 02: Let's leave the survey aside. [00:17:35] Speaker 02: Let's leave [00:17:36] Speaker 02: I mean, you need Yasser. [00:17:38] Speaker 02: I mean, you rely on Betz. [00:17:40] Speaker 02: And the other side has an argument that if we're talking about just the 787 patent, which I'm talking about, that hadn't even issued when Betz was practicing. [00:17:50] Speaker 02: Is that not relevant in your view? [00:17:53] Speaker 02: Is that not a persuasive argument? [00:17:55] Speaker 01: Maybe I misunderstood. [00:17:56] Speaker 01: I thought your honor was going to ask me about the cross link that's referenced in the JMAW order. [00:18:01] Speaker 01: There's two points in the JMAW order at appendix 61 through 62 that are the three reasons for [00:18:10] Speaker 01: why he's excluding him. [00:18:12] Speaker 01: He lists Crosslink twice and then talks about the Figure 1 testimony. [00:18:16] Speaker 01: Was that not what your question was about? [00:18:17] Speaker 01: I guess. [00:18:18] Speaker 01: I'm not sure. [00:18:18] Speaker 01: You can answer. [00:18:19] Speaker 01: Okay, because there's two parts where that comes up. [00:18:22] Speaker 01: There's what I just mentioned, which is referencing what's said in the J-Mall at 6162. [00:18:26] Speaker 01: The issues with the Crosslink there [00:18:30] Speaker 01: Frankly, I don't really understand because they don't have anything to do with the claims. [00:18:34] Speaker 01: The cross-link across the spine does not have to have its own handle. [00:18:38] Speaker 01: There's nothing in any of the claims that requires the cross-link to have a handle. [00:18:42] Speaker 01: What I think the judge is saying is, why can the cross-link also be something designed especially to be grasped by the hand? [00:18:50] Speaker 01: because it's a surgical tool used that way. [00:18:52] Speaker 01: But also, that's completely irrelevant to any of the claims in the 358 and the 121. [00:18:57] Speaker 01: What happens in a crosslink is, can the crosslink be part of the handle means? [00:19:02] Speaker 01: Absolutely. [00:19:03] Speaker 01: Handle means does not mean handle. [00:19:05] Speaker 03: Just focus on the 787 now, which doesn't have handle means. [00:19:09] Speaker 03: Correct. [00:19:09] Speaker 03: What was the ground for saying there is insufficient evidence? [00:19:15] Speaker 03: And I think 787 claim 6 is a method claim, so the doctor actually has to be [00:19:20] Speaker 03: creating the, um, the linking process. [00:19:25] Speaker 01: So if Yasser, if Yassir is completely excluded, so ignore the fact that the simultaneous application of force across the spine would be included in using a cross link, cause that's the whole point of the cross link. [00:19:36] Speaker 01: And that was the testimony that he gave on direct examination. [00:19:40] Speaker 01: If he, if his testimony is completely excluded and we're taking all the inferences in light of Dr. Barry's side, [00:19:46] Speaker 01: You take what Dr. Betts said, which is that he built it and did a construct that's fully infringing all three patents. [00:19:52] Speaker 01: Ignore the time part for a second. [00:19:54] Speaker 01: Then you take Dr. O'Brien, who testified that in the last five years, he's aware that surgeons do that construct. [00:20:01] Speaker 01: And that's it. [00:20:04] Speaker 01: Apologies. [00:20:05] Speaker 01: That's it. [00:20:17] Speaker 01: Dr. O'Brien testifies at appendix 8602 and 8608 through 09 that if you do the kind of fully-length boxed constructs, I know that's a technique that people use. [00:20:31] Speaker 01: And he's been asked that in the last five years. [00:20:34] Speaker 01: So circumstantial evidence to show direct infringement is completely acceptable. [00:20:38] Speaker 01: This all adds up to circumstantial evidence that even for the 787, it was being done. [00:20:43] Speaker 02: OK. [00:20:44] Speaker 02: Well, let's hear the other side, and we store some time for rebuttal. [00:20:57] Speaker 00: Good morning, Your Honors and Police of the Court. [00:21:00] Speaker 00: This is a case about judicial discretion. [00:21:03] Speaker 00: Judge Diamond did exactly what Daubert, Rule 702, and ultimately Rule 50 of the Federal Rules of Civil Procedure obligated him to do, and he did it with reasoned, extensive, comprehensive opinions. [00:21:16] Speaker 00: In excluding Yasser and Neel, he carried out his gatekeeper functions under Daubert and acted well within his broad scope of discretion. [00:21:26] Speaker 00: As to Yassir, he properly excluded Dr. Yassir's testimony because it contradicted his claim construction. [00:21:32] Speaker 00: Judge Stark, you're exactly right. [00:21:34] Speaker 00: When everything is a handle, nothing is a handle. [00:21:37] Speaker 00: And that's what his testimony ended up being. [00:21:39] Speaker 04: Where did he say that on direct? [00:21:43] Speaker 04: It seems to me that what happened was you all did not object to any of his testimony on direct. [00:21:50] Speaker 04: as being inconsistent with the claim construction or beyond the scope of what he had disclosed in his expert disclosures and then you have an admittedly very effective cross-examination from your colleague in which he gets the expert to say certain things [00:22:05] Speaker 04: that you then end up not even having to go to a jury because the cross was so good, you persuaded the judge that it can't possibly be enough evidence here. [00:22:15] Speaker 04: That doesn't sound like a proper use of the rules of evidence or the directive verdict rule. [00:22:22] Speaker 00: So first of all, on direct. [00:22:27] Speaker 00: Well, this is not on direct. [00:22:29] Speaker 00: With regard to the very effective cross what the very effective cross did is to draw out what he had already said on direct Because if you look for example at page 26 of our red brief We have the slide that we put up in front of dr. Yes here where we showed that our [00:22:45] Speaker 00: while he was paying what Judge Diamond called lip service to his claim construction. [00:22:51] Speaker 00: The construction he was actually using is a part that cannot be assembled without grasping it by the hand. [00:22:57] Speaker 04: But those are a few words cleverly selected from about 10 pages of transcript testimony that he gave on direct, in which he repeatedly says, I'm applying the court's claim construction. [00:23:08] Speaker 04: And he repeats it word for word several times. [00:23:10] Speaker 00: And that is the sort of testimony that this court frequently dismisses as ultimately conclusory when the full body of the testimony shows that he was in fact not applying that testimony. [00:23:25] Speaker 03: This is, again, this is a, I'm sorry. [00:23:28] Speaker 03: Yes. [00:23:28] Speaker 03: Can I just ask, how often did he make this point about, [00:23:34] Speaker 03: assembly requiring grasping as opposed to use requiring grasping? [00:23:42] Speaker 03: You used the manipulation part. [00:23:44] Speaker 03: The assembly part does seem, I don't know, oddly a stretch to me. [00:23:51] Speaker 03: But did he say that more than once or just in this one part that you put in? [00:23:56] Speaker 00: I think he said it repeatedly if my recollection is correct. [00:24:00] Speaker 00: But the point is whether it's assembly or whether it's use. [00:24:04] Speaker 00: The point is that what he was saying was a handle isn't a handle. [00:24:08] Speaker 00: And Judge Diamond was laser focused on this from the claim construction argument. [00:24:14] Speaker 00: My friend has already told you about worries that Depute had. [00:24:20] Speaker 00: in the claim construction process that what they were going to try to do with this construction, which by the way was the agreed construction from the Texas case, the one that they agreed to in the Texas case, my friend here was asked by Judge Diamond very specifically, is it a construct that [00:24:41] Speaker 00: is designed especially to be grasped by the hand, a part that is designed especially to be grasped by the hand, or that can be grasped by the hand? [00:24:48] Speaker 00: And my friend's answer was the construction from the Texas case, which is what Dr. Berry is sticking with, is a part that is designed especially to be grasped by the hand. [00:24:59] Speaker 04: What did Dr. Yaseer say at trial that was materially different than what he had said in his deposition [00:25:06] Speaker 04: and his expert report when you lost, without prejudice, but lost the Daubert motion. [00:25:12] Speaker 04: What was different, materially different about his testimony at trial? [00:25:16] Speaker 00: Well, I think that we already were seeing in the deposition this effort to sort of morph from the actual construction. [00:25:24] Speaker 04: Well, to the extent that's true, it hurts you because Judge Diamond implicitly reviewed all of that and said, I'm fine with this testimony. [00:25:31] Speaker 00: Tentatively fine. [00:25:33] Speaker 00: But we're going to see how this comes out at trial. [00:25:35] Speaker 00: And that's the nature of emotion and limiting. [00:25:39] Speaker 00: Daubert does not have to be presented to a judge on emotion and limiting. [00:25:43] Speaker 00: It can be raised when the expert gives a testimony. [00:25:45] Speaker 04: Do you have any examples of cases where a judge allows the renewal of a Daubert and rules on it after the party who you've moved against has rested their case so that they have no opportunity to clean up whatever the judge may have thought went wrong [00:26:06] Speaker 04: And I would just add gratuitously, where the judge had seemed to have blessed them preparing their case on exactly the grounds prior to trial. [00:26:14] Speaker 00: Well, we've cited cases in our brief that say that the discretion that is given to district judges under Rule 702 even allows them to grant Daubert motion sua sponte. [00:26:26] Speaker 00: So I think by extension, that [00:26:28] Speaker 00: understanding of Rule 702. [00:26:30] Speaker 00: And again, this notion of due process, Judge Stark, I think it's important to keep in mind, this is a Rule 104A obligation that they had to make the case that their expert was reliable. [00:26:44] Speaker 00: And they were on notice, even from the claim construction, [00:26:50] Speaker 00: that Dr. Yassir was being seen by Judge Diamond as shifting in his views. [00:26:59] Speaker 00: And that was going to be something that he was going to take a close look at trial. [00:27:03] Speaker 00: And ultimately, he determined. [00:27:05] Speaker 00: And by the way, I think there was some colloquy with my friend about whether this was just a rule 403 exclusion. [00:27:11] Speaker 00: It's also a rule 702 exclusion. [00:27:13] Speaker 03: For Yassir? [00:27:14] Speaker 03: Yes. [00:27:15] Speaker 00: At page A62, the judge said that his testimony was contradictory. [00:27:19] Speaker 00: unhelpful and unreliable. [00:27:22] Speaker 00: Right. [00:27:22] Speaker 03: My recollection is that the district court referred, with respect to Neil, to both 702 and 403, with respect to Yassir, only to 702. [00:27:32] Speaker 03: And I don't remember that he broke it down between 702A about helpful or the remaining parts of 702, which is sort of reliability. [00:27:44] Speaker 00: As I understand that portion of rule 702, it's not a whole lot different than the 403 standard? [00:27:49] Speaker 00: of helpfulness. [00:27:52] Speaker 00: But in any event, what his finding was was that it was both unhelpful and unreliable. [00:27:58] Speaker 00: So I think you have elements of both. [00:28:01] Speaker 00: But again, this is a very discretionary call on the part of the judge. [00:28:05] Speaker 03: What would be unreliable about testimony about [00:28:10] Speaker 03: what one would infer was especially designed to be grasped by the hand. [00:28:16] Speaker 03: I don't get the reliability notion with respect. [00:28:19] Speaker 03: I get it with respect to Neil, but with respect to Yasser, just explain it to me. [00:28:22] Speaker 00: Well, I think the unreliability aspect of it is that it's just not following his claim construction because he wasn't talking about inferences about design especially. [00:28:34] Speaker 04: Why isn't your friend on the other side right that this is really a dispute about the application [00:28:39] Speaker 04: of the claim construction. [00:28:41] Speaker 04: So I think you have to admit, even Judge Diamond did, he at minimum paid lip service to the claim construction. [00:28:46] Speaker 04: If an expert's going to testify, I applied the construction, I applied the construction, I applied the construction, and then you think you elicit some testimony inconsistent with that, why isn't that all going to the wage and the application? [00:29:01] Speaker 00: Because claim construction is supposed to set the boundaries of the invention. [00:29:07] Speaker 00: That's why Markman announced in 1995 that that was for the court, and that's the law of the case. [00:29:14] Speaker 00: What Dr. Yaseer did in this case was to come up on the stand and say, [00:29:20] Speaker 00: yeah i i i realize we proposed that in texas that i realize that judge diamond said this but i'd like something different but you know i mean okay i understand your your argument but that's not a real no he didn't say that well that's it not even use those literal words but that's the important that's what judge diamond took away from his testimony and that's why we give judges like judge diamond discretion in the circumstance [00:29:44] Speaker 00: And I think Judge Diamond had the full picture of what- Can we come back to my earlier question? [00:29:48] Speaker 04: Sure. [00:29:49] Speaker 04: That may have cut you off, not given you a chance to answer. [00:29:51] Speaker 04: Is it correct that there were no objections on direct? [00:29:57] Speaker 04: That on direct, you never stood up and tried to protect the record from- No, I think that's actually wrong. [00:30:03] Speaker 00: And I believe that we had an objection to his testimony, and again, I'm [00:30:12] Speaker 00: I don't want to just stand here and flip through the appendix and waste your time. [00:30:16] Speaker 00: No, I don't want to do that. [00:30:18] Speaker 00: But my recollection is that we initially tried to object when he started using different terminology. [00:30:24] Speaker 00: But that said, this is ultimately another language. [00:30:29] Speaker 04: Whether it's this case or another, I guess. [00:30:32] Speaker 04: If the record is you stand silent on direct, [00:30:36] Speaker 04: And then on cross you reveal the inner workings of the expert's mind. [00:30:40] Speaker 04: And arguably those are inconsistent with the literal claim construction. [00:30:43] Speaker 04: Are we really supposed to say that this expert never should have testified? [00:30:51] Speaker 04: And now we should strike him because we've, even though he is saying he applied to claim construction and got through direct without any objections on this point. [00:31:00] Speaker 04: Cross you reveal that really in his heart of hearts. [00:31:03] Speaker 00: He doesn't believe it Well remember of course that we did have that objection even before trial started which you lost which well which we tentatively lost But it was still in play we certainly could not have relied on that loss and said well We've preserved this issue had we not made this argument at trial because Judge Diamond said explicitly This is necessarily tentative and by the way redirect was available [00:31:26] Speaker 00: redirect, if there was any sort of notion of unfairness here, he could correct that. [00:31:32] Speaker 00: But the fact is that what he was doing was equating a very different concept. [00:31:38] Speaker 04: But just, sorry to keep coming back to this, but anything you can say on what if it's all just very effective cross-examination, should that expert be stricken? [00:31:52] Speaker 00: If it shows that [00:31:54] Speaker 00: they failed to make their case under Rule 104A by preponderance of the evidence that this testimony was reliable, then yes. [00:32:03] Speaker 00: Reliability under Rule 104 is a preliminary question for the court. [00:32:07] Speaker 00: It is not a jury question. [00:32:09] Speaker 00: And that's where I come back to the fact [00:32:11] Speaker 00: that this case is all about judicial discretion. [00:32:14] Speaker 00: And yes. [00:32:15] Speaker 02: We're running out of time. [00:32:16] Speaker 02: So you know we've covered a lot of issues with your friends. [00:32:18] Speaker 02: Why don't you move to kind of the points that Judge Toronto is making on the survey? [00:32:25] Speaker 00: Yes, okay, so the survey is the survey was frankly terrible. [00:32:30] Speaker 02: It was not the same survey I know what was the use of what news can be put to the survey I think that was part of part of the questioning here in terms of establishing that at least there's one news as opposed to establishing the quantity of moves for purposes of damages so the unreliability of the survey cast doubt on even the [00:32:51] Speaker 00: drawing that conclusion from the survey. [00:32:53] Speaker 00: That's the real problem. [00:32:55] Speaker 00: And again, I come back to discretion. [00:33:00] Speaker 00: The survey was found to be unreliable. [00:33:01] Speaker 00: It was shown to be unreliable. [00:33:03] Speaker 00: And that means that the outcome of the survey was bad because the process of design of the survey was bad. [00:33:12] Speaker 00: We don't know in this case, for example, whether or what, because of the problems with the survey. [00:33:20] Speaker 00: Let me give you, by the way, I should have finished that sentence. [00:33:24] Speaker 00: We don't know whether or what, if any, things were practiced by surgeons using the few instruments with any reliability. [00:33:32] Speaker 00: And now, let me tell you why that is the case. [00:33:36] Speaker 00: We pointed out in our brief that there are problems with both representativeness and the flawed question design. [00:33:44] Speaker 00: The flawed question design is a big problem here, because it starts with what is the so-called anchor question 14. [00:33:52] Speaker 02: No, we understand that. [00:33:53] Speaker 00: Right. [00:33:53] Speaker 00: But the problem is that the output of that is not reliable. [00:33:58] Speaker 02: Even to establish one instance. [00:34:01] Speaker 00: It's not even reliable to establish one instance. [00:34:04] Speaker 00: And I'll explain why that is. [00:34:07] Speaker 00: The survey is so bad that when you compare it, for example, to the Medtronic survey, which, by the way, was challenged in this court on only one very narrow ground, the 2016 Medtronic survey said that Medtronic occupied 28% of the market. [00:34:29] Speaker 00: The Depute survey, two years later, took that down to 14%. [00:34:34] Speaker 00: The, by contrast, when you compare them, the Depew survey, in this case, the 2018 survey, had 62% of the use of Expedium, one of the Depew products, were infringing procedures. [00:34:48] Speaker 00: But in the two years prior, it was only 25. [00:34:51] Speaker 00: That goes to what was said to be the pretest that Dr. Neal said that he did. [00:34:59] Speaker 00: The Medtronic survey, he said, was an adequate pretest. [00:35:02] Speaker 00: Judge Diamond said, [00:35:03] Speaker 00: There was a complete absence of pretesting. [00:35:05] Speaker 00: He was right and well within his discretion to say that makes this survey unreliable. [00:35:10] Speaker 04: I'm confused by that. [00:35:11] Speaker 04: Judge Diamond, as best as I can tell, doesn't cite any evidence that any of his criticisms actually would make a difference to a survey methodologist. [00:35:21] Speaker 04: Am I correct about that? [00:35:22] Speaker 04: But when you say evidence, I mean, I mean, I mean, I mean, like your expert. [00:35:27] Speaker 00: Uh, no, because this is, again, this is not, we're not comparing the experts here on this issue. [00:35:33] Speaker 00: This is a, this is a preliminary question of reliability and thus admissibility. [00:35:38] Speaker 00: And judge diamond is saying that what Dr. Neil didn't do. [00:35:44] Speaker 00: was create a reliable survey. [00:35:45] Speaker 04: How does Judge Diamond know that? [00:35:47] Speaker 04: And how do I know that he was right? [00:35:48] Speaker 00: We know that from the testimony that he gave, the cross-examination, and the law in this area. [00:35:53] Speaker 04: No, no, no. [00:35:54] Speaker 04: Dr. Neal never said, I admit it. [00:35:57] Speaker 04: Everything I did made my survey unreliable. [00:36:01] Speaker 00: Yes. [00:36:01] Speaker 00: And well, I'm at the red light, but I'm sure you want an answer, so let me answer your question. [00:36:07] Speaker 00: Yes, of course Dr. Neal said that in the same way that Dr. Yaseer said what he said with regard to the claim construction. [00:36:14] Speaker 00: The problem is that once both the direct examination and then the cross-examination came out, it was very clear that he had violated the basic principles of surveys in the Federal Judicial Center scientific manual as well as the case law that we provided to the court. [00:36:35] Speaker 04: And no expert was necessary to tie that together. [00:36:38] Speaker 04: It's enough. [00:36:39] Speaker 04: It's within a judge's discretion to, by the way, [00:36:44] Speaker 04: Take over the direct examination and basically cross examine the expert while he's on the stand and then find secondary sources and say because I don't like the way this survey looks. [00:37:00] Speaker 04: It's definitely unreliable. [00:37:01] Speaker 00: With respect, Judge Stark, I don't think that's a fair description of what Judge Diamond did here. [00:37:05] Speaker 00: It wasn't just, I don't like how the survey looks. [00:37:08] Speaker 00: What he said was, it is, and again, I repeat, because this is an evidentiary issue, it is a preliminary question under Rule 104A for them to show that their expert was reliable. [00:37:21] Speaker 00: And reliability isn't just whatever they say goes. [00:37:25] Speaker 00: Reliability can get tested by cross-examination. [00:37:29] Speaker 00: And those preliminary questions, as the Supreme Court in Borgeli and other cases have made clear, that's to be done by the court [00:37:40] Speaker 00: as the court's own findings by preponderance of the evidence. [00:37:44] Speaker 00: That isn't the rule 50 standard here. [00:37:47] Speaker 00: That's the court making a determination as to whether this is good enough, whether this is reliable enough to go in front of a jury. [00:37:55] Speaker 02: Can I ask you one final question? [00:37:56] Speaker 02: Yes, please. [00:37:57] Speaker 02: I'm not cutting off my colleagues, but just one point. [00:38:02] Speaker 02: You don't dispute, do you, that if in fact we uphold the striking of Yasu's testimony, that's his testimony only with respect to handles, not necessarily with respect to cross linking. [00:38:14] Speaker 00: I think that's the only fair reading of Judge Diamond's ruling, is that he struck the testimony with regard to handle meets. [00:38:20] Speaker 00: The 787 comes out because of the complete lack of evidence of infringement. [00:38:26] Speaker 00: And while you asked my friend some questions on that during his argument, I think either Judge Prost, it was you or Judge Stark who pointed out quite correctly [00:38:39] Speaker 00: that the evidence of Dr. Betts, he stopped using these depute products in 2014. [00:38:45] Speaker 02: But then his answer to that was the other testimony from the other, that he observed it being used. [00:38:53] Speaker 00: He'd heard of some other people using it. [00:38:56] Speaker 00: And I think under any standard [00:38:59] Speaker 00: that this court would use for substantial evidence, that would not qualify as substantial evidence of infringement. [00:39:05] Speaker 04: Just one more. [00:39:06] Speaker 04: I think I understand their alternative request is at least let us have a trial without Yassir's handle means testimony and without Neal. [00:39:15] Speaker 04: If we were considering doing that, and I don't know if we are, [00:39:23] Speaker 04: Is there a world in which we don't have to reach the expert issues, particularly Yassir, because maybe Judge Diamond would want to give him another chance to not just pay lip service to the testimony, to stick more closely on cross to what he said on direct. [00:39:39] Speaker 04: I don't know. [00:39:40] Speaker 04: Exercise his discretion again. [00:39:42] Speaker 04: Or would your view be, even if we're sending it back for a new trial, so arguably whatever happened at the first trial is now moot, you think we need to decide the expert issues? [00:39:53] Speaker 04: whether we think Judge Diamond got it right, essentially. [00:39:56] Speaker 00: If you were to send it back, I think he's made a final decision with regard to Yassir and with regard to Neal. [00:40:03] Speaker 03: Well, can I just... There will be... Thinking about this a little bit in advance of today's argument, it seemed to me maybe there's a distinction between Neal and Yassir. [00:40:15] Speaker 03: Yassir's problem was his testimony. [00:40:17] Speaker 03: If he gave different testimony, [00:40:19] Speaker 03: He might cross-examine him on why it was different, but that new testimony might adhere to the claim construction in a way that has been found that his earlier testimony didn't. [00:40:33] Speaker 03: The problem with Neil, the basis for the Neil exclusion, is the way he conducted the survey. [00:40:39] Speaker 03: And that's not curable by just testifying differently about it. [00:40:44] Speaker 00: Well, I'd be hesitant to judge Toronto. [00:40:47] Speaker 00: I understand the distinction you're drawing. [00:40:48] Speaker 00: Let's start there. [00:40:50] Speaker 00: But I'd be very hesitant to endorse the notion that what we need to do is we need to let Dr. Yassir have another shot at trying to explain himself. [00:40:59] Speaker 00: And here, I do want to point out before I leave here that Dr. Yassir has been their expert all throughout even the Medtronic litigation and before in the Medtronic IPRs. [00:41:11] Speaker 00: And in the PTAB proceedings, [00:41:18] Speaker 00: in the Medtronic IPR, Dr. Yaseer said, and I quote, posts are not handle needs. [00:41:24] Speaker 00: And he, of course, went that direction to try to save the patents from an invalidity challenge. [00:41:29] Speaker 00: But what then the problem is is that the fundamental difference between the products that Depew puts on the market and Medtronic's products is that Medtronic's products had to handle everybody agreed. [00:41:40] Speaker 00: It wasn't even an issue. [00:41:41] Speaker 00: These, they had the flying handle here. [00:41:44] Speaker 00: And the record here that Dr. Yassir has made was it was increasingly clear as the trial was approaching and then as the trial actually began to take place that Dr. Yassir was not holding to the construction that got them the win in the Medtronic case. [00:42:03] Speaker 00: Thank you. [00:42:03] Speaker 00: If the court has any further questions, again, I'd hope to give you back some time, but it was not convenient. [00:42:09] Speaker 02: All right. [00:42:09] Speaker 02: We'll restore two minutes of your time. [00:42:13] Speaker 01: Three quick points. [00:42:15] Speaker 01: Judge Post, you asked for record sites for you to see your testifying evidence about the simultaneous application of force. [00:42:24] Speaker 01: It's Appendix 1245, where he describes why a surgeon would build on both sides in order to use it. [00:42:30] Speaker 01: And then again on CROSS at 1294, where he's engaged with CROSS saying, I guess I disagree. [00:42:36] Speaker 01: Are you asking me, can they be used at one time? [00:42:38] Speaker 01: I don't see how they wouldn't be used together. [00:42:41] Speaker 01: So you're telling me it's impossible. [00:42:42] Speaker 01: No, I'm not saying it's impossible. [00:42:44] Speaker 01: I'm saying a person's skill and the art would use them together. [00:42:46] Speaker 01: That's what a surgeon do. [00:42:47] Speaker 01: You're not going to waste time and build a tool like that and not use it. [00:42:53] Speaker 01: Judge Start and Judge Toronto, when my friend was talking, got to an interesting point about what happens with the cross-examination. [00:43:02] Speaker 01: A point I didn't get to make in my beginning was this wasn't even cross about the application. [00:43:09] Speaker 01: None of these questions on Cross ever had to do with how Dr. Yaseer applied the construction to the accused products. [00:43:17] Speaker 01: This was revisiting claim construction. [00:43:20] Speaker 01: Judge Toronto, what happens when we go back? [00:43:23] Speaker 01: This testimony will get excluded. [00:43:25] Speaker 01: The cross-examination testimony that we've been talking about all day will be excluded. [00:43:30] Speaker 01: Because if what they're saying is correct, which is what they're asking Dr. Yaseer, Dr. Yaseer, didn't you use a different construction and introduce that construction? [00:43:41] Speaker 01: That violates the courts and limiting order. [00:43:43] Speaker 01: The courts and limiting order said no party will introduce testimony about a different claim construction than mine. [00:43:50] Speaker 01: The only reason this was acceptable, we can keep calling it effective cross, but [00:43:55] Speaker 01: The only reason it was an acceptable effective cross is because it had to do with application. [00:44:00] Speaker 01: How Dr. Yassir was explaining to the jury, this is why a part shown in the patent is a handle means. [00:44:09] Speaker 01: On the who proffered the testimony going back to PTAB, my friend is incorrect. [00:44:15] Speaker 01: That is what he said because he's arguing about what a handle means are. [00:44:19] Speaker 01: Even in the course of this argument, we are not using the term correctly. [00:44:23] Speaker 01: The claim term is not handle. [00:44:25] Speaker 01: It is handle means. [00:44:26] Speaker 01: Handle means only exist. [00:44:29] Speaker 01: We cite this in the brief. [00:44:30] Speaker 01: I already cited some Markman testimony today where this is confirmed. [00:44:34] Speaker 01: You had to link multiple posts together. [00:44:37] Speaker 01: One post does not have a handle means. [00:44:40] Speaker 01: That was the point. [00:44:41] Speaker 01: At page six of our brief, we have a picture of that. [00:44:44] Speaker 01: Okay. [00:44:44] Speaker 01: Can I just one thing on Neil? [00:44:45] Speaker 02: Just one thing and don't abuse your motivation. [00:44:48] Speaker 01: The one thing on Neil I wanted to say is the question on the Daubert challenge and then what can we use it for? [00:44:54] Speaker 01: His argument in response, citing things like third party market data, [00:44:59] Speaker 01: and stuff to show that it was not reliable, that's a conclusion problem. [00:45:04] Speaker 01: That's not a methodology problem. [00:45:06] Speaker 01: Dr. Neal used the same methodology as in the GlaxoSmith case and the Roche case, both from the Third Circuit, cast a wide net, explained how that was, compared it to third-party market data, and said, that is how I know my survey is reliable. [00:45:21] Speaker 01: Zero evidence came in on the other side that what he did was wrong, just that there were criticisms. [00:45:26] Speaker 01: Thank you. [00:45:26] Speaker 01: We thank both sides. [00:45:28] Speaker 01: The case is submitted.